In re K.S., Juvenile
2021 VT 51
| Vt. | 2021Background
- K.S., born February 2018, came into DCF custody after unexplained injury and concerns about parental abuse; parents stipulated to CHINS and later to termination of parental rights.
- At separate hearings in 2019, mother stipulated to termination, testified her relinquishment was voluntary, and the court entered termination; K.S. was adopted by foster parents on April 2, 2020.
- Mother filed a Rule 60(b) motion to vacate the termination (ineffective assistance, involuntariness); the family division denied relief in March 2020 and mother missed the 30‑day appeal deadline.
- Mother moved for an extension of time to appeal (arguing pandemic-related obstacles); the family division denied the extension and mother appealed that denial and later filed a second Rule 60(b) motion post‑adoption, which the family division also declined to hear for lack of jurisdiction.
- After appellate briefing raised potential Cherokee ancestry, the case was remanded for ICWA compliance; on remand the family division found DCF’s later notices and due diligence adequate, tribes responded that K.S. is not an Indian child, and the court concluded ICWA did not apply.
- The Supreme Court consolidated appeals and affirmed: denial of extension, lack of trial-court jurisdiction post‑adoption as to new Rule 60 relief, and the family division’s ICWA determination (error in initial notice was harmless).
Issues
| Issue | Mother’s Argument | DCF/Court’s Argument | Held |
|---|---|---|---|
| 1) Motion to extend time to appeal | Pandemic-related lack of access to technology and relocation excused late filing (good cause / excusable neglect) | Mother was represented by counsel who could have filed; she gave no adequate reason why counsel could not file; granting would prejudice child | Denial affirmed — no good cause nor excusable neglect shown |
| 2) Trial court jurisdiction to hear post‑adoption Rule 60(b) motion | Family division retained jurisdiction and should vacate termination and hold best‑interests hearing | Jurisdiction terminated on adoption under 33 V.S.A. § 5103(d); court lacked power to grant new substantive relief post‑adoption | Affirmed — family division lacked jurisdiction to entertain second Rule 60(b) motion |
| 3) ICWA notice and applicability | Failure to give ICWA notice required vacatur or ability to withdraw consent; DCF didn’t use due diligence and court should treat child as Indian | DCF later provided notice to three Cherokee tribes and BIA; tribes reported K.S. is not a member; any earlier notice error was remediable by remand | Court’s ICWA findings affirmed — initial notice error harmless because tribes determined child not Indian |
| 4) Discovery and expert testimony re: ICWA compliance | Court erred in excluding expert on tribal law and denying subpoenas/discovery into out‑of‑state records | Expert would opine on questions of law; ICWA does not require expansive discovery or seizure of genetic/material records; DCF provided information it had | Affirmed — exclusion of expert and discovery denials within trial court’s discretion |
Key Cases Cited
- Clark v. Baker, 146 A.3d 326 (Vt. 2016) (standard for appellate-review of discretionary extensions of time)
- Town of Killington v. Schramm, 838 A.2d 98 (Vt. 2003) (strict application of excusable‑neglect standard for late appeals)
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (U.S. 1993) (factors for excusable neglect analysis)
- In re J.T., 693 A.2d 283 (Vt. 1997) (ICWA notice rules require remand but not automatic reversal absent strong showing)
- In re M.C.P., 571 A.2d 627 (Vt. 1989) (remand and ICWA notice principles in termination contexts)
- In re R.W., 39 A.3d 682 (Vt. 2011) (harmless‑error standard applied in termination cases)